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Minutes Have Been Seen by the Administration and Cleared with the Chairman) 立法會 Legislative Council LC Paper No. CB(1)2079/99-00 (These minutes have been seen by the Administration and cleared with the Chairman) Ref: CB1/BC/1/99/2 Bills Committee on Mass Transit Railway Bill Minutes of meeting held on Tuesday, 25 January 2000, at 9:00 am in Conference Room A of the Legislative Council Building Members present : Hon Mrs Miriam LAU Kin-yee, JP (Chairman) Hon Kenneth TING Woo-shou, JP Hon HO Sai-chu, SBS, JP Hon Edward HO Sing-tin, SBS, JP Ir Dr Hon Raymond HO Chung-tai, JP Hon NG Leung-sing Hon Mrs Selina CHOW LIANG Shuk-yee, JP Hon CHAN Yuen-han Hon CHAN Wing-chan Hon Howard YOUNG, JP Hon LAU Kong-wah Hon Andrew CHENG Kar-foo Dr Hon TANG Siu-tong, JP Members absent : Hon Cyd HO Sau-lan Hon Albert HO Chun-yan Hon LEE Cheuk-yan Hon Eric LI Ka-cheung, JP Hon Ronald ARCULLI, JP Hon Bernard CHAN Hon CHAN Kam-lam Hon SIN Chung-kai Hon Andrew WONG Wang-fat, JP Hon LAU Chin-shek, JP Hon FUNG Chi-kin Public officers : Transport Bureau - 2 - attending Mr Kevin HO Deputy Secretary for Transport (1) Mr Thomas CHOW Deputy Secretary for Transport (4) Mr Roy TANG Principal Assistant Secretary for Transport (3) Mr Eric CHAN Assistant Secretary for Transport (3B) Finance Bureau Mr Martin GLASS Deputy Secretary for the Treasury (2) Department of Justice Mr Jonothan ABBOTT Senior Assistant Law Draftsman Ms Betty CHOI Senior Government Counsel Attendance by : MTR Corporation invitation Mr Leonard TURK Legal Director and Secretary Mr Phil GAFFNEY Operations Director Mrs Miranda LEUNG Corporate Relations Manager Clerk in attendance : Mr Andy LAU Chief Assistant Secretary (1)2 - 3 - Staff in attendance : Miss Connie FUNG Assistant Legal Adviser 3 Ms Alice AU Senior Assistant Secretary (1)5 ______________________________________________________________________ Action I Meeting with the Administration LC Paper No. CB(3)32/99-00 - the Bill LC Paper No. CB(1)870/99-00(01) - The Administration's response to members' queries raised at the meeting on 20 January 2000 LC Paper No. CB(1)870/99-00(02) - Committee stage amendments to the Bill prepared by the Administration The Chairman advised that in response to members' request made at the meeting on 4 January 2000, the Staff Consultative Council of the MTR Corporation and the Mass Transit Railway Corporation Staff Union had provided supplementary submissions on their views about various staff-related matters (issued respectively vide LC Paper Nos. CB(1)840/99-00 and CB(1)858/99-00) to the Bills Committee for consideration. 2. Members then proceeded to discuss the Administration's response to members' queries raised at the meeting on 20 January 2000 (LC Paper No. CB(1)870/99-00(01)). Clause 9 - Corporation to maintain proper and efficient service 3. At the enquiry of the Chairman, the Deputy Secretary for Transport (1) (DS for T(1)) affirmed that the Administration would, whenever possible, report any amendments to the Performance Requirements in Schedule III of the Operating Agreement to the LegCo Panel on Transport before they were implemented. Clause 15 - Suspension of franchise 4. Mr CHENG Kar-foo stated that the drafting of subclause (6) should be tightened to ensure that compensation would not be payable by the Government under subclause (6)(a) if the suspension was caused by the acts and omissions of MTRCL. He suggested that the expression "except where a franchise is revoked under section 18" be inserted in subclause (6) to cover both subclauses (6)(a) and (b). In response, DS for T(1) said that the Administration did not agree with the suggestion as it was the policy intention to pay compensation to the Corporation in respect of the use of railway property taken over by the Government. Taking note of the reply, Mr CHENG said that he did not agree with the Administration's view and he would re-consider the policy issues involved. Clause 57 - No civil liability for breach of statutory duty Action - 4 - 5. The Senior Assistant Law Draftsman (SALD) took members through the Administration's reply in relation to members' queries about clause 57. He explained that as new obligations for the Corporation were created under the Bill, it was important to have a provision that expressly stated that any obligation under the new Ordinance was a matter of enforcement by the Government. Whilst no additional rights to enforce the Corporation's statutory obligations were conferred on members of the public, clause 57 would have no impact whatsoever as regards obligations of the nature of private rights, e.g. any duty of care the Corporation owed to a member of the travelling public. Hence, all the existing rights of private individuals to sue the Mass Transit Railway Corporation (MTRC) in civil law were preserved. 6. Regarding part (c) of the Administration's reply, Mr CHENG Kar-foo asked and the Assistant Legal Adviser (ALA) advised that she concurred with the Administration's view that clause 57 would not affect the right of a claimant in a civil case to introduce as evidence the fact that the Corporation had breached its statutory obligation under the Bill. However, the breach of statutory obligation would not be conclusive evidence and no civil liability would be constituted by that breach alone. 7. While stating his general acceptance of the explanation given by the Administration, Mr CHENG Kar-foo expressed concern about the effect of this new provision on the legal relationship among public transport operators, the travelling public and the Government and he considered that a change of policy might be involved. As no similar provision was found in the existing Mass Transit Railway Corporation Ordinance (Cap. 270) or the Kowloon-Canton Railway Corporation Ordinance (Cap. 372) and no problem was created by its absence, Mr CHENG sought further advice from the Administration on the rationale and legal basis for introducing this provision. 8. In reply, DS for T(1) stressed that no policy change was involved with the enactment of clause 57. It had to be made clear that the nature of the present Bill was different from Cap. 270 and Cap. 372 as the purpose of those ordinances was simply to establish the respective statutory corporations to operate the Mass Transit Railway and the Kowloon-Canton Railway. However, under this Bill, a franchise would be granted to the privatized Corporation and new legal obligations were created thereunder. From the perspective of establishing a clear regulatory regime which was an essential part of the privatization exercise, it was considered both appropriate and desirable to include the provision in case there was any doubt on the part of the travelling public as regards their private rights. The interests of the prospective shareholders of the privatized Corporation would also be protected. Moreover, the arrangement was in line with other franchised public transport services such as buses. If a franchised bus operator failed to provide a proper and efficient service, any member of the public could lodge a complaint with the Government who would enforce the relevant terms of the franchise agreement but that person could not bring a civil action against the bus operator in court. Action - 5 - 9. SALD also advised that the provision was for the purpose of avoidance of doubt and from a purely drafting point of view, it was considered by some legal authority a recommended good practice to include a similar provision so as to put the matter beyond doubt. In this connection, the Legal Director and Secretary, MTRC (LD&S/MTRC) added that the proposition that a breach of statutory duty did not by itself give rise to civil liability as expounded by Lord BROWNE-WILKINSON (LC Paper No. CB(1)837/99-00(01) refers) was only a general one and there could be exceptions. It was precisely for those exceptions that subclause (1) was needed in this case, to put it in no uncertain terms that the legislature did not intend to give an individual additional private rights to enforce any statutory obligations. 10. Mr CHENG was not totally convinced that clause 57 was necessary for the purposes stated by the Administration. He opined that without the provision, the matter could still be argued in court on the basis of common law principles. Notwithstanding the Administration's good intention, he was worried that this statutory provision might become an escape clause for the Corporation. Mr CHENG requested Admin. the Administration to provide information on relevant precedent cases in support of its view. 11. Mrs Selina CHOW queried whether the position would remain the same after clause 57 was enacted, particularly with regard to subclause (2) which seemed to suggest that only the civil liabilities of the Corporation in respect of negligence and those which were not related to its statutory obligations were unaffected. She sought clarification from the Administration in this regard. 12. In response, SALD advised that from the legal point of view, negligence at common law and a breach of statutory obligation were two distinct legal situations. Notwithstanding the difference, there might however be situations where there was a certain overlap in which the fact of non-compliance with a statutory obligation was relevant to establishing a claim of negligence. The Administration's view was that if a person had a cause of action in negligence, clause 57 would not affect that person's right to pursue that cause of action even if the negligence was related to the breach of statutory obligation. In other words, if a claim was brought on the basis of negligence, the fact that the negligence also constituted a breach of statutory obligation would not affect the person's right to bring that claim.
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